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Saturday, July 9, 2016

Creating an Indian Single Market - an opportunity for the Supreme Court of India to contribute by drawing upon ideas from International Economic Law & Policy

A nine-Judge Bench of the Supreme Court of India will soon deliberate upon "the tension between the power of the State Government to tax and raise revenues on the one hand, and the constitutional directive to ensure free movement of trade and commerce within the territory of India" under the Constitution of India. See Six Opinions, One Problem: Why a Nine-Judge Bench of the Supreme Court will Rethink a Fifty-Year Old Case by Alok Prasanna Kumar. This issue reminds me of a paper I had published as a Chapter titled ‘New Agendas for International Economic Law Teaching in India: Including an Agenda in Support of Reform’ in Colin B. Picker, Isabella Bunn & Douglas Arner, (ed.) INTERNATIONAL ECONOMIC LAW - THE STATE & FUTURE OF THE DISCIPLINE, Hart Publishing, 2008. It was republished as “An Agenda for Teaching International Economic Law in Indian Law Schools”, Indian Journal of International Economic Law, 2009, National Law School, Bangalore. The paper is available for download on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1360732In this paper, I had laid out the case for (and I quote): "New agendas for IEL teaching in India (and indeed for other developing countries), must derive from and support domestic 'reform' objectives. The ideas in Karl Polanyi's 'The Great Transformation' and in John Ruggie's work on embedded liberalism are useful for imagining, defining and mapping the meaning of 'reform' for India. These ideas provide language and concepts for contestation and debate over substantive meanings and outcomes of 'reform'. They also embrace notions of meaningful societal participation in the processes of both the definition and implementation of 'reform'. IEL teaching in India must more actively engage with domestic issues arising on account of the liberalization of India's external trade as well as the liberalisation of its domestic economy. Even broader agendas for IEL teaching in India can be found within reform discourses that extend beyond economic reforms into bigger questions about reform of governance in India, with corresponding implications for constitutional law, federalism, reconstructions of meanings and structures of governance, and in their broadest sense become questions about negotiating and defining the social purpose of domestic governance and of providing adequate delivery systems for such governance. By packaging different reform discourses together, IEL courses could enable the creation of new knowledge, the development of new discourses, and the creation of new capacity as well as space for useful social, political, constitutional, and legal activity. As part of arguing the case for more IEL teaching, efforts are required to broaden the audience or market for IEL knowledge, and increasing 'demand' for IEL would be an important component. IEL teaching in India might usefully develop an inward looking focus, by engaging more with issues and problems confronting the domestic political economy. It must also develop new issue linkages between competing substantive values, competing interests, and substantive outcomes and procedural mechanisms. In doing so, IEL teaching would contribute towards constructing a more inclusive redefinition of the 'problem-space' of reform in India." The issues that the Supreme Court of India will consider as discussed in this blog post about the tension between "the power of the State Government to tax and raise revenues on the one hand, and the constitutional directive to ensure free movement of trade and commerce within the territory of India" and the GST issue would both benefit from analysis from an International Economic Law & Policy point of view. There would be a lot within WTO law and EU law & policy for instance about the creation of a single market etc., which could help make the case for an Indian single market before both the Court and the Indian Parliament and State legislatures. Hope the lawyers in this matter draw upon this broader material and discourse from IEL.

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Seema Sapra

For more on General Electric corruption in India in connection with the Indian Rail tenders for the proposed diesel locomotive factory at Marhowra and the proposed electric locomotive factory at Madhepura, see